This is the single-most frequently asked question from clients and prospective clients. Probably, because they see cops routinely read those rights on TV shows and movies. But there is no absolute right to be read your Miranda rights at the time of arrest. In fact, the vast majority of NH cops and troopers do not read Miranda rights at the point of arrest, especially in misdemeanor and motor vehicle cases.

The Miranda right is not a right to be informed of something. The actual right is the right not to be interrogated while under arrest or circumstances that amount to a constructive right, unless the police have first advised and obtained a waiver of the right to remain silent, right to an attorney, etc.

In many misdemeanor and motor vehicle cases, especially DWI cases, the arresting officer never reads Miranda rights. Why? Because first, they have already done all the questioning at roadside. This is before arrest, so no Miranda advisory is required. And second, because people under arrest tend to say things spontaneously, in a misguided effort to either spill their guts or win over the officer’s favor. The US Supreme Court and NH Supreme Court have both held repeatedly that “spontaneous” statements made while in custody are admissible without any Miranda rights. So why would a cop remind an arrestee who might otherwise be talkative, that they have a right to remain silent, and that everything they say can be used against them?

All that being said, we often raise Miranda issues in both felony and misdemeanor cases. It’s an important part of our toolset. There is nothing more incriminating than a confession. Social scientists say that jurors find a confession more incriminating than a positive DNA match. That means we have to fight hard to try to limit such testimony.